Q: I have a tenant who moved into his rental unit last month. I included a provision in his lease that prohibits smoking cigarettes in his unit. Now, his neighbors are complaining that cigarette smoke from his unit is seeping through their air vents. When I approached the tenant he told me that he has the right to smoke inside his own unit and that I am interfering with his privacy and use of the premises. Is he correct?
A: No, there is no legal right to smoke cigarettes and restricting smoking does not interfere with the tenant’s privacy or use and enjoyment of the premises. If the tenant refuses to stop smoking, then you may give him a 3 Day Notice to Perform Covenant or Quit for breaking the non-smoking covenant of your lease.
Q: I am a landlord and do not allow smoking in my units. Since marijuana became legal in California, I am worried that my tenants will start smoking marijuana in my rental units. Does my non-smoking provision in my lease include marijuana smoke?
A: No, if your lease provision does not include the specific type of smoke, then it will not apply to marijuana smoke. You should adjust your new leases to prohibit marijuana, tobacco, and any other smoke producing products on the Premises. If you have tenants that are on month to month rental agreements, then you will need to provide a 30 day notice of change in terms of tenancy to prohibit marijuana smoke. If your tenant is in a lease, then both parties must agree to this new term or you will have to wait until the expiration of the lease to change the smoking provision to include marijuana smoke.
Q: I own an apartment complex that has a common pool and barbeque area. My tenants are complaining that they should be allowed to smoke in designated smoking areas. All of my rental agreements state that smoking is not allowed inside individual apartments or in any of the common areas. Am I allowed to do this or do I need to provide my tenants with a designated smoking area?
A: A complete ban on smoking at your apartment complex is valid. California law allows you to restrict tenants from smoking in any interior or exterior area, including individual apartments and all common areas. Thus, you do not need to provide a designated smoking area for your tenants and may restrict smoking anywhere on the property.
Q: I would like to completely prohibit smoking in individual apartments, but allow smoking only in certain areas. Am I allowed to restrict some areas, but not others?
A: Yes. You may prohibit smoking inside of the apartments while allowing smoking in specified common areas. In order to accomplish this you must include a provision in the rental agreement that specifies the areas on the property where smoking is prohibited. Be specific about the areas where your tenant cannot smoke in your rental agreement so a tenant does not try to argue that the rental agreement was not clear as to where they can and cannot smoke cigarettes. Additionally, any rental agreement or lease entered into after January 1, 2012 that prohibits smoking must designate the specific areas where smoking is prohibited.
Q: I have a tenant that signed a lease without a non-smoking provision. The lease has since expired and converted to a month-to-month tenancy. Can I prohibit him from smoking cigarettes in the unit?
A: Yes, but you must give the tenant notice prior to the ban becoming effective. In order to accomplish this you must provide your tenant with a 30 Day Notice of Change in Terms of Tenancy. This notice must be in writing and properly served on the tenant. [This form is available for FREE to members at www.aoausa.com.]
Attorney Franco Simone, of Simone & Associates and The Landlords’ Legal Center has been doing evictions for over 20 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday – Friday from 9:00 AM to 5:00 PM. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected].